Surface Transportation Reauthorization: Environmental Issues and Legislative Provisions in SAFETEA-LU (H.R. 3)

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Surface Transportation Reauthorization:

Environmental Issues and Legislative Provisions

in SAFETEA-LU (H.R. 3)

September 1, 2005

(name redacted)

Environmental Policy Analyst

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Surface Transportation Reauthorization:

Environmental Issues and Legislative Provisions

in SAFETEA-LU (H.R. 3)

Summary

On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, and

Efficient Transportation Equity Act of 2005: A Legacy for Users (SAFETEA-LU or

SAFETEA). The act authorizes federal surface transportation programs (highway,

highway safety, and transit programs) undertaken by the U.S. Department of

Transportation (DOT) for FY2005-FY2009. The previous authorization for FY1998FY2003, the Transportation Equity Act for the 21st Century (TEA-21, P.L. 105-178),

expired on September 30, 2003. Since then, surface transportation programs operated

in accordance with a series of extensions.

During the reauthorization process, certain environmental issues garnered

significant attention from both Members of Congress and interested stakeholders

(e.g., state transportation agencies, transportation construction organizations, and

environmental groups). This attention was due to both the impact that surface

transportation projects can have on the environment (and, possibly, the costs

associated with addressing those impacts) and the impact that compliance with

environmental requirements can have on project delivery.

SAFETEA includes a variety of environmental provisions. Generally, they

authorize funding to eliminate, control, mitigate, or minimize environmental impacts

associated with surface transportation programs or projects. Funding was authorized

both for broad programs (e.g., the Congestion Mitigation and Air Quality

Improvement Program) and for specific types of projects (e.g., the purchase of clean

fuel vehicles and programs to control noxious weeds). Funding levels for such

activities generally increased in actual dollars compared to TEA-21.

The provisions also specify procedures that are intended to expedite compliance

with certain environmental requirements. The most attention and debate related to

changes in the procedures DOT must follow to comply with the Clean Air Act’s

conformity requirements; with environmental review requirements of the National

Environmental Policy Act (NEPA); and with DOT requirements regarding the use

of publicly owned parks, refuges, and historic sites (known as “Section 4(f)”

requirements). In particular, a 180-day statute of limitations was established on

judicial claims on certain final agency actions and Section 4(f) was amended to allow

the use of parks, refuges, and historic sites if that use results in de minimis impacts.

Two provisions that generated significant stakeholder interest were not included

in SAFETEA. The first was a provision in the Senate-passed version of H.R. 3 that

would have required a 2% set-aside of each state’s Surface Transportation Program

funds for a “Highway Stormwater Discharge Mitigation Program.” The second was

an exemption for aviation refueling trucks from secondary containment requirements

of certain provisions of the Clean Water Act.

This report provides background and detail on significant environmental

provisions in SAFETEA. It will not be updated.

Contents

Issues and Legislation Regarding Environmental “Streamlining” . . . . . . . . . 2

The Environmental Review Process Under NEPA . . . . . . . . . . . . . . . . 3

Interagency Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Project “Purpose and Need” and Alternatives . . . . . . . . . . . . . . . . . . . . 5

Designation of Categorical Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . 6

“Section 4(f)” Requirements for Public Parks and Historic Sites . . . . . 7

SAFETEA Provisions Regarding NEPA and Section 4(f) . . . . . . . . . . 7

Issues and Legislation Regarding the Clean Air Act . . . . . . . . . . . . . . . . . . 12

The National Ambient Air Quality Standards . . . . . . . . . . . . . . . . . . . 12

Conformity with Transportation Planning . . . . . . . . . . . . . . . . . . . . . . 13

The CMAQ Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

SAFETEA Provisions Affecting Compliance with the

Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Programs or Funding to Mitigate Environmental Impacts . . . . . . . . . . . . . . 21

Transportation Enhancement Funding and Eligibility . . . . . . . . . . . . . 21

Environmental Restoration and Pollution Abatement . . . . . . . . . . . . . 22

Control of Noxious Weeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Research Grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Surface Transportation Environment and Planning

Cooperative Research Program . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Nonmotorized Transportation Pilot Program . . . . . . . . . . . . . . . . . . . . 23

Use of Recycled or Reused Materials . . . . . . . . . . . . . . . . . . . . . . . . . 24

Noteworthy Provisions Not in the Final Bill . . . . . . . . . . . . . . . . . . . . . . . . 25

Set-Aside for Stormwater Mitigation Program Funding . . . . . . . . . . . 25

Secondary Containment Exemption for Aviation

Refueling Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

List of Tables

Table 1. SAFETEA Provisions Related to Streamlining Compliance

with Environmental Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Table 2. SAFETEA Provisions Related to Conformity Requirements . . . . . . . . 17

Table 3. SAFETEA Provisions Related to the CMAQ Program . . . . . . . . . . . . . 18

Surface Transportation Reauthorization:

Environmental Issues and Legislative

Provisions in SAFETEA-LU (H.R. 3)

On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, and

Efficient Transportation Equity Act of 2005: A Legacy for Users (SAFETEA-LU or

SAFETEA). The act reauthorizes federal highway, highway safety, and transit

programs (also referred to generally as surface transportation programs) undertaken

by the U.S. Department of Transportation’s (DOT) Federal Highway Administration

(FHWA) and Federal Transit Administration (FTA) for FY2005-2009. The previous

long term authorization (for FY1998-2003), the Transportation Equity Act for the

21st Century (TEA-21, P.L. 105-178), expired on September 30, 2003. Since then,

surface transportation programs operated as a result of 11 extension acts.

The delay in reauthorization had to do primarily with issues regarding how

much money would be authorized and how transportation funds would be distributed

among the states.1 Certain environmental issues also garnered significant attention

and debate from both Members of Congress and interested stakeholders (e.g., state

transportation agencies, transportation construction organizations, and environmental

groups). This attention was due to both the impact that surface transportation

projects can have on the environment and the impact that compliance with

environmental requirements can have on project delivery.

SAFETEA includes many provisions regarding the environment. Generally, the

provisions do one of two things. First, they authorize funding to eliminate, control,

mitigate, or minimize certain environmental impacts associated with surface

transportation programs or projects. Examples include authorization of funding for

the Congestion Mitigation and Air Quality (CMAQ) program, authorization of

funding for clean fuel buses, and authorization of funding for projects that would

control noxious weeds.2 Second, they specify procedures that would be required to

be undertaken to comply with certain environmental requirements. For example,

SAFETEA includes provisions intended to “streamline” DOT’s compliance with

environmental review requirements of the National Environmental Policy Act

(NEPA, 42 U.S.C. §4321 et seq.) and change the process for demonstrating

conformity with elements of the Clean Air Act (42 U.S.C. §7401 et seq.).

For information about general provisions of SAFETEA and funding issues, see CRS Issue

Brief IB10138, Surface Transportation: SAFETEA-LU.

Funding for already-existing programs or projects generally increased in actual dollar

amounts, compared to funding levels in TEA-21. Detail regarding funding levels is

provided in the discussion of individual programs or projects.

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This report focuses on environmental provisions of SAFETEA that may impact

federal funding or delivery of surface transportation programs or projects.

Specifically, this report addresses legislative provisions that will change how DOT

complies with elements of NEPA and the Clean Air Act. Current requirements of

each law sufficient to understand the provisions of SAFETEA are discussed. Also

included is an overview of selected environmental provisions that create new or make

changes to existing programs or procedures that are intended to mitigate or minimize

the environmental impacts of surface transportation programs.

Issues and Legislation Regarding

Environmental “Streamlining”

During the TEA-21 reauthorization process, some state transportation

departments and transportation construction organizations reported to Congress that

the process required to obtain various federal, state, and local environmental

approvals and permits, often needed for major highway projects, was sometimes

inefficiently implemented and overly time-consuming. In particular, stakeholders

expressed concern about the lack of effective interagency cooperation when multiple

federal or state agencies were required to participate in a project. Congress attempted

to address these concerns by including “Environmental Streamlining” provisions in

TEA-21.

Although not defined by the statute, FHWA defines environmental streamlining

as the timely delivery of federally funded transportation projects, while protecting

and enhancing the environment. Because major transportation projects may be

affected by dozens of federal, state, and local environmental requirements,

administered by multiple agencies, improved interagency cooperation was identified

by Congress as a critical element to the success of environmental streamlining. The

streamlining provisions of TEA-21 required the Department of Transportation (DOT)

to develop and implement a “coordinated environmental review process” for highway

projects that either do have, or may have, a significant impact on the environment

(approximately 9% of all highway projects fall into one of these categories).3 This

coordinated review process encouraged full and early participation by all relevant

federal and state agencies required to participate in a highway project.

Since the passage of TEA-21, numerous administrative activities have been

undertaken to facilitate streamlining. However, some Members of Congress

expressed the need for further legislation to expedite the environmental review

process required of highway construction and transit projects. As a result, SAFETEA

includes provisions intended to further streamline the environmental review process.

Discussed below are selected elements of the environmental review process relevant

to provisions in SAFETEA and a summary of legislative provisions that may be

generally categorized as “streamlining.” The provisions deal primarily with NEPA,

but could also be used to expedite compliance with other environmental

requirements.

General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to

Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp 3-4.

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The Environmental Review Process Under NEPA. Before final design,

property acquisition, or construction on a highway or transit project can proceed, the

Federal Highway Administration (FHWA) and the Federal Transit Administration

(FTA) must demonstrate compliance with all applicable state and federal legal

requirements regarding the environment, including NEPA. NEPA requires the

preparation of an environmental impact statement (EIS) for all major federal actions

“significantly” affecting the environment. An EIS is a full disclosure document that

provides a description of the proposed project, the existing environment, and an

analysis of the anticipated beneficial and adverse environmental effects of the

proposed project and all reasonable alternatives. Preparation is done in two stages,

resulting in a draft and final EIS.

Projects for which it is not initially clear whether impacts will be significant

require the preparation of an environmental assessment (EA). If it is determined, at

any time during the EA that a project’s impacts will be significant, an EIS must be

prepared. However, if the EA determines that the project creates no significant

environmental impact, a Finding of No Significant Impact (FONSI) will be issued by

DOT. The FONSI must briefly present the reasons why the project will not have a

significant effect on the environment. According to FHWA, in FY2001, projects

requiring an EA and a subsequent FONSI accounted for approximately 6% of

FHWA-funded highway projects (representing approximately 15% of the $17.6

billion in federal funding distributed to states in FY2001); approximately 3% of

highway projects required an EIS (accounting for just under 9% of FY2001 federal

funding); the remainder were categorically excluded from the requirement to prepare

either an EA or an EIS.4

The Council on Environmental Quality (CEQ), in the Executive Office of the

President, promulgated regulations specifying NEPA compliance procedures

applicable to all federal agencies.5 At CEQ’s direction, DOT promulgated its own

regulations governing the preparation of EISs and related environmental

documentation required for FHWA and FTA projects.6 In addition to formal

regulations, DOT has issued a variety of guidance documents and technical

advisories to assist decision makers in completing the NEPA process for

transportation projects.7 NEPA compliance fits into the overall project delivery

process as a subset of one or more of the following four major elements generally

considered to be part of the full transportation project delivery process: preliminary

General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to

Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp. 3-4.

40 C.F.R. §§1500-1508.

40 C.F.R. §771; final rule at 53 Federal Register 32646.

The FHWA Office of NEPA Facilitation maintains a website, “NEPA: Project

Development Process,” which includes information regarding FHWA’s environmental

policy, FHWA Technical Advisories, and a variety of guidance materials to facilitate

compliance with NEPA at all stages of the process. The site is accessible at [http://

environment.fhwa.dot.gov/projdev/index.htm] as of August 24, 2005. Information regarding

NEPA compliance for FTA is available on the agency’s Environmental website at

[http://www.fta.dot.gov/1243_ENG_HTML.htm], as of September 3, 2005.

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engineering, final or construction engineering, right-of-way acquisition, and

construction.

Interagency Cooperation. Projects requiring NEPA documentation involve

the participation of a “lead agency” and “cooperating agencies.” The lead agency is

defined in CEQ regulations as the federal agency that has taken responsibility for

preparing the NEPA documentation.8 For federally funded highway and transit

projects, the lead agency will usually be DOT (specifically FHWA or FTA). The

project applicant, such as a state DOT, will likely participate in the NEPA process

as a joint lead agency. The project applicant is required to initially develop

substantive portions of the environmental document, while DOT is responsible for

its scope and content.9

DOT requires that the EIS demonstrate that appropriate comments and

coordination were solicited from relevant federal, state, and local cooperating

agencies. Cooperating agencies are required to participate in the NEPA process,

when requested by the lead agency, if they are obligated to provide comments within

their agency’s jurisdiction, expertise, or authority. This means that an agency with

jurisdiction over or expertise regarding any identified environmental consequence

anticipated from a project is required to provide DOT with the appropriate input. For

example, if historical and archeological preservation consequences are identified, the

Advisory Council on Historic Preservation or the state historic preservation officer

will likely be included as a cooperating agency during the environmental review

process. If farmland impacts are identified, the EIS should summarize the results of

comments and analyses from the U.S. Department of Agriculture (USDA) and, as

appropriate, state and local agriculture agencies.

For any given transportation project, compliance with a wide variety of

legislative and regulatory requirements, requiring the participation of multiple

agencies, may be required. DOT regulations require that the final EIS or the FONSI

document compliance with all applicable environmental laws, executive orders, and

other related requirements.10 Depending upon the complexity of the project or

resources impacted, a significant number of environmental requirements, in addition

to NEPA, may be applicable. According to FHWA, legal requirements frequently

applicable to highway projects are contained in the:

Endangered Species Act of 1973 (16 U.S.C. §1531 et seq.);

National Historic Preservation Act (16 U.S.C. §460 et seq.);

Clean Water Act (33 U.S.C. 1251 et seq.); and

“Section 4(f)”of the Department of Transportation Act of 1966 (40

U.S.C. §303) (see “Section 4(f) Requirements for Public Parks and

Historic Sites” section, below) .

40 C.F.R. §1508.16.

23 C.F.R. §771.109(c).

23 C.F.R. §771.133.

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For the requirements listed above, the U.S. Fish and Wildlife Service, the

Advisory Council on Historic Preservation, the U.S. Army Corps of Engineers, or the

Environmental Protection Agency (EPA) may be required to participate in the NEPA

process as a cooperating agency. That participation may take such forms as providing

comments on DOT documentation, performing scientific analysis, issuing permits,

or providing an assessment of project impacts.11

The role of a cooperating agency is frequently set out in a memorandum of

agreement with the lead agency. That agreement may involve the cooperating agency

drafting certain portions of the EIS that relate to its jurisdiction or expertise. For

example, if a highway project has the potential to impact prime farmland, USDA may

agree to provide FHWA with an analysis of those impacts.

Project “Purpose and Need” and Alternatives. As required under both

CEQ and DOT regulations, the EIS must include a statement clarifying the project’s

“purpose and need.” This section of an EIS is the foundation upon which subsequent

sections of the EIS are built. DOT requires the discussion to be clear and specific and

support the need for the project. Further, it is the purpose and need section that

drives the selection of the range of alternatives that will be considered and analyzed

for a given project. CEQ regulations require agencies to discuss a range of

alternatives that will include all “reasonable alternatives” under consideration as well

as any other alternatives that were considered but subsequently eliminated from

consideration. Reasonable alternatives include those that are practical or feasible

from the technical and economic standpoint and using common sense, rather than

simply desirable from the standpoint of the agency or a potentially affected

stakeholder. The alternatives must also include a “no action” alternative (e.g.,

short-term safety and maintenance improvements) that may serve as a baseline

against which “build” alternatives are compared.

In his capacity as the Chairman of the Interagency Transportation Infrastructure

Streamlining Task Force,12 Transportation Secretary Norman Mineta sought guidance

from CEQ Chairman James Connaughton regarding the role of lead and cooperating

agencies with regard to developing a highway project’s “purpose and need.”13

Secretary Mineta referred to the sometimes extended interagency debates over

purpose and need statements as a reason for delay in highway project development.

In his response, Chairman Connaughton cited excerpts of NEPA itself as well

as CEQ regulations that specify that the lead agency has the authority for and

It is DOT policy that compliance with all applicable environmental requirements be

coordinated under the “NEPA umbrella.” This means that, for any given transportation

project, any study, review, or consultation required by law, that is related to the

environment, should be conducted within the framework of the NEPA process.

The Task Force was established under Executive Order 13274, “Environmental

Stewardship and Transportation Infrastructure Project Review,” available at

[http://www.fhwa.dot.gov/stewardshipeo/index.htm], as of September 3, 2005.

Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,

2003 response, are available at [http://www.fhwa.dot.gov/stewardshipeo/minetamay6.htm],

as of September 3, 2005.

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responsibility to define a project’s purpose and need. Further, Chairman

Connaughton referenced previous federal court decisions giving deference to the lead

agency in determining a project’s purpose and need. While not addressed in this

correspondence, CEQ regulations also specify the selection of reasonable alternatives

as within the authority of the lead agency.

Designation of Categorical Exclusions. Transportation projects that do

not individually or cumulatively have a significant social, economic, or

environmental effect, and which DOT has determined from past experience with

similar projects have no significant impact, are excluded from the requirement to

prepare an EA or EIS. Such actions are processed as categorical exclusions. In

FY2001, almost 91% of all FHWA projects were classified as categorical

exclusions.14

A common misconception is that such projects are categorically excluded from

compliance with NEPA. Such projects do require a certain level of NEPA

compliance but are excluded from the requirement to prepare an EA or EIS. Unlike

EAs or EISs, categorical exclusions are not a type of document, but are classes of

DOT actions that may be, in effect, pre-approved. For example, “transportation

enhancements” often fall into this category of action.15

DOT regulations specify two groups of categorical exclusions. Whether or what

type of documentation may be necessary to demonstrate compliance will depend

upon into which of the two groups the project falls. The first group includes projects

that call for no or limited construction.16 Examples include the construction of

bicycle and pedestrian lanes, landscaping, emergency repairs, and the installation of

pavement markings or traffic signals. The second group consists of actions with a

higher potential for impacts than the first group, but which are generally determined

to meet the criteria for a categorical exclusion because environmental impacts are

minor.17 An example of such a project is the modernization of a highway through

resurfacing, reconstruction, adding shoulders, or adding auxiliary lanes.

Since the second group of actions has a higher potential for impacts than the

first, DOT may require that the state or local project sponsor provide analyses or

documentation to allow DOT to determine if the categorical exclusion designation

is proper. Further, although a categorically excluded project’s environmental impacts

may not be “significant” as defined under NEPA, requirements of other laws may

General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to

Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003.

Activities classified as “transportation enhancements” are specifically listed by Congress

under 23 U.S.C. §101(a)(35). For more information, see FHWA’s Transportation

Enhancement website at [http://www.fhwa.dot.gov/environment/te/index.htm],as of

September 3, 2005. Also, see the “Programs or Funding to Mitigate Environmental Impacts”

section below for a list of existing projects eligible for funding, changes in eligibility under

SAFETEA, and changes in funding apportionments for such programs.

Specified under 23 C.F.R. §771.117(c).

Specified under 23 C.F.R. §771.117(d).

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still apply. For example, the installation of traffic signals is generally considered an

action with no environmental impacts. However, if those traffic signals will be

installed in a historic district, compliance with provisions of the National Historic

Preservation Act may apply. Or, if the proposed route of a bicycle path borders

endangered species habitat, a biological assessment, in compliance with the

Endangered Species Act, may be required.

“Section 4(f)” Requirements for Public Parks and Historic Sites.

Another requirement that is generally carried out within the context of the NEPA

process is compliance with Section 4(f) of the Department of Transportation Act of

1966.18 Section 4(f) requirements apply to the use of publicly owned parks and

recreation areas, wildlife and waterfowl refuges, and to publicly or privately owned

historic sites of national, state, or local significance. The law prohibits the use of a

Section 4(f) resource for a transportation project unless there is no “prudent and

feasible” alternative to do otherwise, and the project includes all possible planning

to minimize harm to the resource.

When a project does propose the use of a Section 4(f) resource, a separate

“Section 4(f) evaluation” must be prepared and included with the appropriate NEPA

documentation. The evaluation must analyze alternatives and design shifts that avoid

the protected resource. If Section 4(f) land is subsequently chosen for use in a project,

the evaluation must demonstrate that the use of other alternatives would have resulted

in unique problems. “Unique problems” are present when there are truly unusual

factors or when the costs or community disruption reach “extraordinary magnitude.”

This test was introduced in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402

(1971), and subsequently referred to as “Overton Park Criteria.”

SAFETEA Provisions Regarding NEPA and Section 4(f). Unlike TEA21, the term “streamlining” is not used in SAFETEA. However, the intended effect

is the same — to expedite compliance with certain environmental requirements,

primarily NEPA and Section 4(f).

With regard to NEPA, many of the provisions in SAFETEA codify existing

regulatory requirements, such as: specifically designating DOT as the lead agency for

surface transportation projects; specifying the role of the lead and cooperating

agencies; and allowing deadlines for decision-making to be set.19 Following are key

SAFETEA provisions related to streamlining that change existing statutory or

regulatory requirements:

Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. § 1653(f) and applies

to all DOT projects. A similar provision, found at 23 U.S.C. § 138, applies specifically to

Federal-aid highways. In 1983, as part of a general recodification of the DOT Act, 49 U.S.C.

§ 1653(f) was formally repealed and codified in 49 U.S.C. § 303 with slightly different

language. This provision no longer falls under a “Section 4(f),” but DOT has continued this

reference, given that over the years, the whole body of provisions, policies, and case law has

been collectively referenced as Section 4(f).

For more information on issues related to streamlining, see CRS Report RL32024,

Background on NEPA Implementation for Highway Projects: Streamlining the Process.

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The establishment of a new entity in the NEPA process, referred to

as a “participating agency,” that includes those that intend to submit

comments on NEPA documentation in addition to those that meet

the definition of a cooperating agency;

The establishment of procedures to be followed by lead and

participating agencies for the collaborative development of the

project’s statement of purpose and need and project alternatives,

including the establishment of deadlines on comments;

The establishment of a 180-day statute of limitation on judicial

claims on final agency actions related to environmental

requirements;

Authorization to allow the use of transportation funds to help

agencies required to expedite the environmental review process;

The establishment of a dispute resolution process when agencies

disagree on elements of the environmental review process;

Authorization to allow states to determine whether certain classes of

projects may be processed as categorical exclusions; and

Authorization to allow the establishment of state pilot programs to

allow participating states to assume certain federal responsibilities

regarding compliance with environmental laws.

With regard to Section 4(f), the law is amended to allow the use of Section 4(f)

resources if it is established that such use results in de minimis impacts to the

resource.

Detail on provisions in SAFETEA that are intended, either directly or indirectly,

to streamline compliance with environmental requirements are listed in Table 1.

Table 1. SAFETEA Provisions Related to Streamlining

Compliance with Environmental Requirements

Provision

Description

Environmental Compliance Procedures

New project

development

procedures

Specifies new project development procedures for “Efficient

Environmental Reviews for Project Decision-making”(elements

of which are listed below) and repeals streamlining provisions

established in TEA-21. The new procedures are required to be

implemented for projects requiring an EIS and may be applied to

other projects that require compliance with elements of NEPA.

The project sponsor is required to inform DOT when the

environmental review process should be initiated. [§6002(a)]

Lead and joint

lead agency

designation

Statutorily designates DOT as the lead federal agency. Designates

the project sponsor (if a state or local government, as opposed to a

private party) as the joint lead agency for the environmental

review process; allows the joint lead agency to prepare any

supporting documents if the federal lead agency provides

guidance and assistance and ultimately approves the documents.

[§6002(a)]

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Provision

Description

Roles and

responsibilities

of “participating”

agencies

Specifies that the lead agency must invite and designate certain

agencies to participate in the NEPA process. A participating

agency may be one that has special expertise regarding any of the

impacts of the projects, is required to participate under some

federal jurisdiction or authority, or intends to submit comments

on the project. To the extent practicable, participating agencies

are required to carry out their statutory obligations with regard to

the project concurrently with reviews required under NEPA.

[§6002(a)]

Project initiation

process

Requires the project sponsor to initiate the environmental review

process by notifying DOT of the type of work, termini, length,

and general location of the proposed project, together with a

statement of any federal approvals anticipated to be necessary for

the proposed project. [§6002(a)]

Purpose and need

development and

alternatives

analysis

Requires the lead agency, as early as practicable, to provide the

public and participating agencies the opportunity to participate in

defining the project’s purpose and need and the range of

alternatives to be considered. After the public’s and agencies’

participation, the lead agency shall determine the project’s

purpose and need, the alternatives to be considered, the

methodologies to be used and level of detail required in the

alternatives analysis, and the preferred alternative. [§6002(a)]

Coordination and

scheduling of

agency/public

participation

Requires the lead agency to establish a schedule for coordinating

public and agency participation in the environmental review

process; specifies factors to be considered in establishing the

schedule, such as responsibilities of participating agencies, the

overall size of the projects, and the sensitivity of natural and

historic resources potentially impacted by the project. [§6002(a)]

Dispute

resolution

Establishes lead agency and participating agency responsibilities

to identify and resolve disputes that could delay completion of the

environmental review process; if an issue cannot be resolved

within 30 days of the required dispute resolution meeting, the lead

agency is required to notify all agency heads, the Governor, the

Senate Environment and Public Works Committee, the House

Transportation and Infrastructure Committee, and CEQ.

[§6002(a)]

Establishment of

performance

measures

Requires DOT to establish performance measures and report

progress toward improving and expediting the planning and

environmental review process. [§6002(a)]

Financial

assistance to

affected agencies

Allows funds to be provided to affected federal, state, or tribal

agencies participating in the environmental review process to

support activities that contribute to expediting and improving

transportation planning and delivery. [§6002(a)]

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Provision

Description

Limit on claims

Prohibits claims seeking judicial review of a permit, license, or

approval issued by a federal agency for highway or transit

projects unless they are filed within 180-days after publication of

a notice in the Federal Register announcing the final agency

action, unless a shorter time is specified in the federal law under

which the judicial review is allowed. [§6002(a)]

State assumption

responsibilities

Allows DOT to establish a pilot program for up to five states to

assume DOT’s environmental review responsibilities for projects

funded under the recreational trails program (23 U.S.C. 104(h))

and for transportation enhancement activities (23 U.S.C.

101(a)(38)). Responsibilities may be assumed by the state,

including acceptance of jurisdiction in federal court, in

accordance with terms specified in a memorandum of

understanding (MOU) between the state and DOT, for an initial

period of no more than three years that may be renewed by mutual

agreement after that. [§6003]

State assumption

responsibilities

for categorical

exclusions

Allows DOT to assign and a state to assume responsibility for

determining whether certain designated projects may be classified

as categorical exclusions, in accordance with criteria to be

established by DOT. Terms of the state’s authority will be

specified in an MOU between the state and DOT for a renewable

period of three years. Compliance monitoring and termination

responsibility will be maintained by DOT. [§6004]

Categorical

exclusion for

designation for

ITS projects

Requires DOT, within one year, to specify categorical exclusions

for activities that support the deployment of Intelligent

Transportation Systems (ITS). Directs DOT to develop a

nationwide programmatic agreement governing the review of such

activities in accordance with the National Historic Preservation

Act, in consultation with the National Conference of State

Historic Preservation Officers and the Advisory Council on

Historic Preservation. [§6010]

State project

delivery pilot

program

Requires the establishment of a pilot program to allow Oklahoma,

California, Texas, Ohio, and Alaska to assume certain federal

environmental review responsibilities (in addition to categorical

exclusion determinations). Responsibility could be assumed for

environmental reviews required under NEPA, or any federal law,

for one or more highway projects within the state. Federal

responsibility for any conformity determination required under

the Clean Air Act could not be assigned to the state. The program

would be administered in accordance with a written agreement

between U.S. DOT and the participating state DOT. U.S. DOT is

directed to promulgate regulations to implement the pilot program

within 270 days of enactment of SAFETEA. [§6005]

CRS-11

Provision

Description

Addition of

design criteria

that integrate

natural resources

concerns into

transportation

project planning

Amends standards for establishing design criteria for the National

Highway System by adding the following publications that could

be used when developing those criteria: FHWA’s “Flexibility in

Highway Design;” “Eight Characteristics of Process to Yield

Excellence and the Seven Qualities of Excellence in

Transportation Design” developed by the 1998 conference

“Thinking Beyond the Pavement National Workshop on

Integrating Highway Development with Communities and the

Environment while Maintaining Safety and Performance;” and

any other material that the DOT Secretary deems appropriate.

[§6008]

Section 4(f) Compliance

Change in the

approval process

for the use of

public parks and

refuges

Allows for the use of publicly owned parks and recreation areas,

wildlife and waterfowl refuges if it is determined that such use

would result in “de minimis impacts” to that resource; that

determination must receive concurrence from the official with

jurisdiction over that resource (e.g., the U.S. Fish and Wildlife

Service, the National Park Service, or applicable state or local

park authorities). [§6009(a)]

Change in the

approval process

for the use of

historic sites

Allows for the use of a historic site if it is determined that such

use would result in “de minimis impacts” to that resource; that

determination must be made in accordance with provisions of the

National Historic Preservation Act (16 U.S.C. 470f) that specify

criteria for finding that the use will have no “adverse effect” on

the site. [§6009(a)]

Clarification of

existing

standards

Requires DOT, within one year, to issue regulations clarifying

factors to be considered and standards to be applied in

determining whether alternatives are “prudent and feasible” under

the Section 4(f) requirements. [§6009(b)]

Implementation

study

Requires DOT to commission an independent review of the

implementation of the new amendments; requires an evaluation of

items such as: any efficiencies resulting from the amendments;

the post-construction effectiveness of impact mitigation and

avoidance commitments; and the number of projects with de

minimis impacts. (No direct funding for this study is provided.)

[§6009(c)]

Exemption of the

Interstate System

Specifies that the Interstate System cannot be considered a

“historic site” under provisions of Section 4(f); using the

administrative procedures established under §106 of the National

Historic Preservation Act (see March 10, 2005 Federal Register

notice, pg. 11928); it may still be determined that individual

elements of the Interstate System possess an independent feature

of historic significance that may still be protected under Section

4(f) requirements. [§6007]

Source: Table prepared by the Congressional Research Service (CRS) based on an analysis of

provisions of SAFETEA.

CRS-12

Issues and Legislation Regarding the Clean Air Act

One of the more obvious environmental impacts related to transportation is its

generation of air pollution, in particular “smog” and “soot.” Smog (ground-level

ozone) is not directly emitted from vehicles, but is formed by the reaction in the

presence of sunlight of nitrogen oxides (NOx) and volatile organic compounds

(VOCs), both of which are emitted from vehicles as well as other sources. Soot

(particulate matter or PM) can be generated from a variety of sources including the

combustion of petroleum (notably, diesel fuel). If the concentrations of soot and

smog in the air, in addition to other pollutants, exceed certain levels, they can have

adverse effects on human health and the environment.

The National Ambient Air Quality Standards. The Clean Air Act directs

the EPA to regulate emissions of air pollutants. Of relevance to transportation is

EPA’s authority to establish standards, based on certain health and environmental

criteria, for ozone, carbon monoxide (CO), NOx, and PM.20 The National Ambient

Air Quality Standards (NAAQS), subsequently established by EPA, specify

allowable concentrations and exposure limits for each “criteria pollutant.” A

geographic area that meets or exceeds the standard is considered to be in

“attainment” for a particular NAAQS; areas that do not meet a standard are in

“nonattainment.”21 A “maintenance” area is one that was previously in

nonattainment, but is currently attaining the NAAQS subject to a maintenance plan.22

The NAAQS for particulates, CO, NOx, and short-term (one-hour)

concentrations of ozone have been in effect since the 1970s. However, a more

stringent standard for ozone (an 8-hour concentration) and new standards for fine

particulates (PM2.5) went into effect more recently. In April 2004, part or all of 474

counties were designated in nonattainment for the new ozone standard. In January

2005, EPA announced that part or all of 225 counties were in nonattainment for

PM2.5.23

Regulated particulates are either “coarse” (between 2.5 and 10 micrometers in diameter,

known as PM10) or “fine” (less than 2.5 micrometers, known as PM2.5). PM10 from

transportation sources may come from brake and tire wear, pavement wear, and other

vehicle degenerative processes. PM2.5 are emitted from combustion sources, such as diesel

engines. Fine particulates penetrate deeper into the lungs and remain lodged there, rather

than being exhaled, causing negative impacts on health. Also included on the list of criteria

pollutants are lead and sulfur dioxide. On-road mobile sources (i.e., transportation-related

sources) are not significant sources of either of these pollutants.

For information on areas currently designated as in nonattainment, see EPA’s “Green

Book Nonattainment Areas for Criteria Pollutants,” available online at [http://www.epa.gov/

oar/oaqps/greenbk/index.html], as of September 3, 2005.

For a more extended discussion of issues regarding NAAQS, see CRS Report RL30853,

Clean Air Act: A Summary of the Act and Its Major Requirements.

For more information, see CRS Report RL32345, Implementation of EPA’s 8-Hour

Ozone Standard; and CRS Report RL32431, Particulate Matter (PM2.5): National Ambient

Air Quality Standards (NAAQS) Implementation.

CRS-13

The Clean Air Act requires states to develop a State Implementation Plan (SIP)

to demonstrate how they will implement, maintain, and enforce the NAAQS.24 The

SIP must include enforceable emission limitations and other control measures, as

well as schedules and timetables for compliance with NAAQS, if applicable.

Compliance deadlines vary, depending on the severity of the pollution, but generally

a nonattainment area must demonstrate that it is making annual emission reductions

sufficient to reach attainment by the applicable deadline. If necessary, the SIP must

also include a “motor vehicle emissions budget,” which establishes a goal the state

must meet with regard to emissions from mobile sources such as cars, trucks, and

buses. States submit initial SIPs and subsequent revisions to EPA for approval.

The attainment of NAAQS and the development of SIPs are relevant to surface

transportation issues for a variety of reasons. For example, transportation agencies

must consider SIP goals in developing long- and short-term transportation plans.

Also, whether or not federal funds will be made available for a surface transportation

project may depend upon whether the project can be shown to conform with the

SIP.25

Conformity with Transportation Planning. State and metropolitan

transportation planners are required under the Clean Air Act to ensure that their longrange transportation plans and short-range Transportation Improvement Programs

(TIPs) conform with the motor vehicle emissions budget established in a SIP.

Conformity is a way to ensure that federal funding and approval are given only to

transportation projects that are consistent with a state’s air quality goals.26

Specifically, Section 176(c) of the Clean Air Act requires that planned transportation

projects will not:

Cause new air quality violations;

Worsen existing NAAQS violations; or

Delay attainment of relevant NAAQS.

Long-range transportation plans look at a 20-year planning horizon and specify

the long-term goals for a metropolitan area’s transportation system. Before a new

transportation plan can be approved or a new project can receive federal funding, a

regional emissions analysis must demonstrate that the emissions projected in the plan

conform to the emissions budget established by the SIP. A new conformity

demonstration must be made for a transportation plan at least every three years.

A TIP identifies major highway and transit projects to be funded in the short

term (within the next three years) either in a metropolitan area (if that area is a

nonattainment or maintenance area) or on a statewide basis. Metropolitan TIPs must

42 U.S.C. § 7410.

Ozone nonattainment areas are classified according to the extent to which pollution levels

exceed the standards; they made be designated as being in marginal, moderate, serious,

severe, or extreme nonattainment.

For more information, see guidance from FHWA: Transportation Conformity: A Basic

Guide for State and Local Officials, June 19, 2000, available online at [http://www.

fhwa.dot.gov/environment/conformity/con_bas.htm], as of September 3, 2005.

CRS-14

be updated at least every two years, statewide TIPS at least every three years. TIPs

may also need to be updated when a new project is added. In practice, many large

urban areas obtain a new conformity determination for their TIPs on an annual basis.

Highway and transit projects cannot receive federal funds unless they are part of a

conforming TIP.27

While conformity has been required for more than a decade, its impact is

expected to grow in the next few years as a result of several factors, including the

new NAAQS for ozone and fine particulates, and the increase in emissions from

sport utility vehicles (SUVs) and other “light trucks.”28 These and other factors could

contribute to numerous metropolitan areas facing a temporary suspension of highway

and transit funds, unless they impose sharp reductions in vehicle, industrial, or other

emissions. In 2003, the General Accounting Office (GAO, now called the

Government Accountability Office) reported that, over the previous six years, only

five metropolitan areas had to change transportation plans in order to resolve a

conformity lapse; but about one-third of local transportation planners surveyed

expected to have difficulty demonstrating conformity in the future.29

The CMAQ Program. In the year following the Clean Air Act Amendments

of 1990, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)30

directed the Secretary of DOT to establish and implement a Congestion Mitigation

and Air Quality Improvement (CMAQ) program. ISTEA authorized a total of $6.0

billion in funding for surface transportation and other related projects that contribute

to air quality improvements and congestion mitigation. In particular, it authorized

funding for programs and projects intended to reduce carbon monoxide (CO) and

ozone.

ISTEA established a formula to apportion CMAQ funds largely based on a

state’s population and pollution reduction needs. The population of each area in a

state that is a nonattainment or maintenance area for ozone and/or CO is multiplied

by a weighting factor based on the level of nonattainment (e.g., moderate, serious,

severe). States with no maintenance or nonattainment areas for ozone or CO are

guaranteed at least 0.5% of each year’s authorized CMAQ funds.

Under TEA-21, a total of $8.1 billion was authorized for the program for

FY1998-FY2003. TEA-21 also expanded the program to allow the use of CMAQ

For a more extended discussion of the issues regarding conformity, see CRS Report

RL32106, Transportation Conformity Under the Clean Air Act: In Need of Reform?

SUVs, minivans, and pickup trucks, vehicles classified as “light trucks,” are regulated

less stringently than passenger cars. Their potential to impact air quality standards is tied

to the fact that sales of such vehicles represent a significant proportion of new vehicle sales

and that they potentially release greater levels of criteria pollutants than other passenger

cars. For more information, see CRS Report RS20298, Sport Utility Vehicles, Mini-Vans,

and Light Trucks: An Overview of Fuel Economy and Emissions Standards.

See U.S. GAO, Environmental Protection: Federal Planning Requirements for

Transportation and Air Quality Protection Could Potentially Be More Efficient and Better

Linked, GAO-03-581, April 2003.

ISTEA was the surface transportation authorization legislation for FY1991-FY1997.

CRS-15

funds for projects and programs intended to reduce PM10. TEA-21 did not, however,

change the apportionment formula that is based on ozone and CO. Therefore, states

with maintenance or nonattainment areas for only PM10 receive the guaranteed

minimum CMAQ funding.

Projects and programs eligible for CMAQ funds must come from a conforming

transportation plan and TIP. According to guidance from DOT, such projects must

also be expected to result in “tangible reductions” in CO, ozone precursor emissions,

or PM10.31 CMAQ funds cannot be used for projects that will result in new highway

capacity.

Specific types of projects eligible for CMAQ funds include, but are not limited

to:

Transportation control measures;

Inspection and maintenance programs for auto emission controls;

Extreme low-temperature cold start programs;

The purchase of publicly owned, alternative fuel vehicles;

Traffic flow improvements;

Transit and public transportation programs;

Pedestrian and bicycle facilities and programs;

Travel demand management strategies;

Outreach and rideshare programs; and

Fare/fee subsidy programs.32

According to FHWA, the most effective CMAQ-funded projects tend to be large

in scope and directly affect vehicle emissions, such as inspection and maintenance

programs.

CMAQ funds are available to a wide range of government and nonprofit

organizations, as well as private entities contributing to public-private partnerships.

Decisions regarding which projects or programs to fund are generally made through

the appropriate metropolitan and/or statewide transportation planning organizations,

and involve the state or local air quality agency. Also, FHWA or FTA field offices

are required to coordinate the project selection process with EPA.

SAFETEA Provisions Affecting Compliance with the Clean Air Act.

Several air quality-related issues are addressed in SAFETEA. Provisions that relate,

either directly or indirectly, to attainment of the NAAQS include:

Amendments to the Clean Air Act regarding air quality monitoring

data influenced by “exceptional events;”

DOT Program Guidance: “The Congestion Mitigation and Air Quality Improvement

(CMAQ) Program Under the Transportation Equity Act of the 21st Century (TEA-21),”

April 1999, available online at [http://www.fhwa.dot.gov/environment/cmaq99gm.htm], as

of September 3, 2005.

Ibid.

CRS-16

Amendments to the Clean Air Act regarding conformity

demonstration requirements;

Revisions to CMAQ eligibility requirements;

Authorization to use CMAQ funds for specific state projects that

may not otherwise qualify for continued funding under the program;

Modification of programs funding clean fuel buses; and

Modification of state high occupancy vehicle (HOV) requirements.

Amendments to Air Quality Monitoring Requirements. Section 6013

of SAFETEA amends Air Quality Monitoring requirements specified under §319 of

the Clean Air Act. SAFETEA’s amendment requires EPA to promulgate regulations

that will take into consideration methods of handling air quality monitoring data that

is influenced by “exceptional events.” Such events are defined as those that affect

air quality; are not reasonably controllable or preventable; are caused by human

activity that is unlikely to recur at a particular location or a natural event; and are

determined by EPA, in accordance with established regulations to meet criteria that

would constitute an exceptional event.

EPA is directed to promulgate regulations implementing SAFETEA’s

amendment by March 1, 2006. Included among those regulations must be criteria

and procedures to allow governors to petition EPA to exclude air quality data that is

directly due to exceptional events from use in determining exceedances or violations

of NAAQS. According to the SAFETEA conference report (H.Rept. 109-203), the

development of such a process would mean that events such as forest fires or

volcanic eruptions would not cause a region to fail to meet its federal air quality

goals.

Amendments to Conformity Requirements. SAFETEA amends Section

176 of the Clean Air Act with regard to how and when conformity demonstrations

are made. Under the amendments, updates of conformity demonstrations for

transportation programs and plans will be required every four years instead of every

three, and the planning horizon over which conformity must be demonstrated may

be shortened from 20 years to 10. SAFETEA also establishes a 12-month grace

period following a failure to demonstrate conformity before a lapse would be

declared. Amendments to the conformity requirements are listed in Table 2.

CRS-17

Table 2. SAFETEA Provisions Related to

Conformity Requirements

Action

Provision Summary

Conformity

redetermination

requirements

Adds a provision to §176 of the Clean Air Act to require a

conformity redetermination for existing transportation plans

or programs within two years after EPA: finds that a motor

vehicle emissions budget is adequate; approves a SIP that

establishes a motor vehicle emissions budget that has not yet

been determined to be adequate; or promulgates SIP that

establishes or revises an emissions budget. [§6011(a)]

Change in

frequency of

conformity

determination

updates

Amends §176 to allow the frequency of conformity

determinations on updated transportation plans and programs

to be every four years, instead of three, unless the metropolitan

planning organization (MPO) elects to update it more

frequently or is required to redetermine conformity. [§6011(b)]

Change in

conformity horizon

for long-term

transportation plans

Adds a provision to §176 to allow an MPO, after consultation

with local air pollution control agencies and the solicitation of

public comments, to shorten the planning horizon for

conformity determinations from 20 years to 10. [§6011(c)]

Allowance for the

substitution of

transportation

control measures

Adds a provision to §176 to allow transportation control

measures (TCMs) to be replaced, in or added to, a SIP without

a new conformity determination, if the substitute TCM

achieves equivalent or greater emissions reductions;

concurrence on the substitution must be reached between the

MPO, EPA, and the state air pollution control agency.

[§6011(d)]

Grace period for

conformity lapses

Adds a provision to §176 to allow a 12-month grace period

before the consequences of a conformity lapse shall apply.

[§6011(e)]

Regulations

Amends §176 to require EPA to revise the conformity rule

within two years of the enactment of the bill to reflect the

amendments in SAFETEA. [§6011(g)]

Source: Table prepared by CRS based on an analysis of provisions of SAFETEA.

Amendments to CMAQ Provisions. CMAQ funding for FY2005-FY2009

totals $8.6 billion. This compares to a total of $8.1 billion in funding authorization

for the six fiscal years under TEA-21. SAFETEA amends the CMAQ apportionment

formula under 23 U.S.C. §104(b)(2) and the CMAQ program requirements under 23

U.S.C. §149(b). Significant amendments include: an expansion of program funding

eligibility requirements; changes in requirements applicable to states receiving the

minimum apportionment; a directive that diesel retrofit projects will have funding

priority over other projects; and a requirement that EPA, with DOT, publish guidance

on cost-effective emission reduction technology. A complete list of legislative

provisions regarding the CMAQ program is provided in Table 3.

CRS-18

Table 3. SAFETEA Provisions Related to the CMAQ Program

Action

Provision Summary

Authorization

A total of $8.6 billion is authorized for FY2005-FY2009.

[§1101(a)(5)]

Apportionment

Amends 23 U.S.C. §104(b)(2) regarding the apportionment

weighting factors for the CMAQ program to: change the weighting

factor for ozone or carbon monoxide (CO) maintenance areas from

0.8 to 1.0; add a weighting factor of 1.0 for areas in non-attainment

for the new 8-hour ozone standard; specify that the weighting factor

of 1.2 for areas in non-attainment or maintenance for both CO and

ozone will apply only to the population of the county in nonattainment or maintenance for CO. [§1103(d)]

“Congestion

relief” funding

Allows states to use funds apportioned under the CMAQ program,

as well as the Surface Transportation Program and the National

Highway System, to fund a “real-time system management

information program” (programs that provide states with the

capability to monitor in real-time traffic and travel conditions of the

major highways and to share the information with other states, local

governments, and the traveling public). [§1201]

Eligibility for

maintenance

areas under the

old 1-hour

ozone standard

Amends 23 U.S.C. §149(b) to allow areas that were required to file

maintenance plans with EPA to be eligible to receive CMAQ funds

(this provision is intended to help those areas that were designated

nonattainment under the previous 1-hour ozone standard, but are

designated attainment for the new 8-hour ozone standard).

[§1808(a)]

General

changes to

CMAQ

eligibility

Limits the eligibility of projects identified by EPA to those that are

likely to contribute to a high level of effectiveness in meeting air

quality standards. [§1808(b)]

Specific

changes to

CMAQ

eligibility

Amends 23 U.S.C. 149(b) to allow the following projects to be

eligible for CMAQ funds: advanced truck stop electrification

systems; projects that will improve transportation systems

management and operations; integrated, interoperable emergency

communications equipment; and diesel retrofits. [§1808(b)]

States

receiving

minimum

apportionment

Amends 23 U.S.C. 149(c) to specify that states receiving the

minimum apportionment (i.e., ½ of 1% based on the population

apportionment) are allowed to use CMAQ funds for projects that

would otherwise meet CMAQ eligibility requirements. [§1808(c)]

Publication of

emission

reduction

guidelines

EPA is directed to publish emission reduction guidance listing

diesel retrofit technologies and supporting technical information,

including information regarding emission reduction effectiveness

and cost-effectiveness. [§1808(d)]

CMAQ

funding

priorities

Directs state and metropolitan planning organizations (MPOs) to

give funding priority for diesel retrofits and cost-effective

congestion mitigation activities; allows agencies to retain existing

authorities and roles in making final project selections. [§1808(d)]

CRS-19

Action

Provision Summary

Interagency

consultation

requirements

Directs DOT to encourage states and MPOs, in nonattainment and

maintenance areas, to consult with state and local air quality

agencies on estimated emission reductions from proposed CMAQ

programs and projects. [§1808(e)]

Evaluation and

assessment of

projects

Directs DOT, in consultation with EPA, to evaluate and assess a

representative sample of CMAQ projects to determine their impacts

on air quality and congestion levels and to ensure the effective

implementation of the program. Directs DOT to maintain and

disseminate a database describing project impacts (no direct

funding is provided for the evaluation or the database). [§1808(f)]

Allowances for

specific

projects in

designated

states

Authorizes specific states to use CMAQ funds for the following

categories of projects that would not otherwise meet existing

CMAQ eligibility requirements:

— Public transit activities that serve a nonattainment or

maintenance area (Montana);

— Operation and maintenance of intelligent transportation

system strategies that serve a nonattainment or maintenance

area (Michigan);

— Operation of passenger rail service between Boston,

Massachusetts, and Portland, Maine (Maine); and

— Operation of passenger rail service between Portland, Oregon

and Eugene, Oregon (Oregon); and

— The purchase of alternative fuel or biodiesel (Missouri, Iowa,

Minnesota, Wisconsin, Illinois, Indiana, and Ohio) [§1808(g)(k)].

Source: Table prepared by CRS based on an analysis of provisions of SAFETEA.

Clean Fuels Grant Programs. Under TEA-21, the Clean Fuels Formula

Grant Program was created. The program was intended to accelerate the deployment

of advanced bus technologies.33 The program was developed to assist transit systems

in purchasing low emissions buses and related equipment, constructing alternative

fuel fueling facilities, modifying existing garage facilities to accommodate clean fuel

vehicles and assisting in the utilization of biodiesel fuel. Eligible recipients of the

grant funds were public transit operators in nonattainment or maintenance areas, both

urbanized and non-urbanized.

TEA-21 provided $100 million in guaranteed funding each fiscal year for this

program, including $50 million from the Formula Grants program and, $50 million

from funding available under the Capital Investment Grants program for Bus and Bus

Facilities. However, each DOT appropriations act since the enactment of TEA-21

has expressly provided that this funding be made available to projects in the Bus and

Bus Facilities program under the Capital Investment Grants program. Therefore,

FTA did not administer the program separately from the Bus and Bus Facilities

program.

42 U.S.C. §5308.

CRS-20

Section 3010 of SAFETEA amends §5308 of Title 49 by making the program

discretionary in nature rather than a formula grant program. (Hence, the new title of

the program is the Clean Fuels Grant Program.) Grants under the program will be

subject to the requirements of Urbanized Area Formula Grants (49 U.S.C. §5307).

Under §3036, SAFETEA authorizes $49,600,000 for FY2005 (under the formula

grant program specified under TEA-21), $43,000,000 for FY2006, $45,000,000 for

FY2007, $49,000,000 for FY2008, and $51,500,000 for FY2009.

With regard to program implementation, the amendments specify that not more

than 25% of the funds made available under this grant program may be used for clean

diesel bus technology. The definitions of “clean fuel vehicles” and “eligible

projects” remain largely the same as under existing law.

Also related to clean fuel buses is a new Clean School Bus Program.34 Under

§6015, SAFETEA establishes a program to authorize funds to assist localities

seeking to reduce emissions from existing school buses. The legislation requires EPA

to award grants to replace pre-1977 school buses and retrofit post-1990 school buses,

and when appropriate, purchase alternative fuels. The program will allow for grants

that will pay between 25% and 50% of the replacement or retrofit costs. Under this

program, EPA is authorized to appropriate, and have available until expended,

$55,000,000 for each of FY2006 and FY2007 and “such sums as are necessary” for

each of FY2008, FY2009, and FY2010. While SAFETEA authorizes funding for this

program, it does not designate a specific program from which funding would come

(e.g., from CMAQ or STP funds).

HOV Lanes for Hybrid Vehicles. Under TEA-21, states were given the

authority to grant exceptions from high occupancy vehicle (HOV) lane requirements

to “Inherently Low Emission Vehicles” (ILEVs). The ILEV standard requires that

a vehicle have no evaporative emissions (e.g., vehicles that run only on electricity or

natural gas). Although they did not meet the definition of an ILEV, single occupancy

hybrid vehicles were allowed by some states to use HOV lanes. This was not

authorized under existing federal law. Because of the reduced emissions and

improved fuel economy of hybrid vehicles, there was congressional interest in

explicitly granting states the right to exempt hybrid vehicles from HOV lane

requirements.35

Section 1121 of SAFETEA specifies that state agencies with jurisdiction over

the operation of an HOV facility must establish occupancy requirements for vehicles

using those facilities. Vehicles with fewer than two passengers will not be allowed

to use an HOV facility, with the exception of: motorcycles and bicycles, public

transportation vehicles, “low-emission and energy-efficient” vehicles, and High

Occupancy Toll (HOT) vehicles. A state may also choose to allow low-emission and

energy-efficient vehicles to pay a toll to use HOV lanes.

EPA also funds a Clean School Bus USA program. For FY2005, Congress appropriated

$7.5 million for cost-shared grant programs. For more information about the program, see

[http://www.epa.gov/cleanschoolbus/index.htm], available as of September 3, 2005.

For more information, see the discussion on “Hybrid Vehicles” in CRS Issue Brief

IB10128, Alternative Fuels and Advanced Technology Vehicles: Issues in Congress.

CRS-21

Low-emission and energy-efficient vehicles are defined to include ILEVs or

vehicles meeting Tier II emissions levels established under section 202(i) of the

Clean Air Act (42 U.S.C. 7521(i)) for a specific vehicle make and model. To qualify

for the low-emission and energy-efficient vehicle exemption, the vehicle must also

meet one of the following requirements: be an alternative fuel vehicle operating on

alternative fuel or, if it is propelled by on-board hybrid technologies, meet particular

fuel economy performance requirements. Further, the state agency must create a

program that defines how such qualifying vehicles are selected and certified, and

establish a method to label qualifying vehicles. SAFETEA provides for the

discontinuation of these exceptions if the operation of HOV lanes becomes seriously

degraded as a result of lane exceptions.

Programs or Funding to Mitigate Environmental Impacts

In addition to provisions that relate to streamlining environmental compliance

or complying with elements of the Clean Air Act, there are a variety of provisions

throughout SAFETEA that relate in some way to the environment. Generally, those

provisions create or fund programs or projects intended to minimize or mitigate

environmental impacts related to surface transportation projects.36

Transportation Enhancement Funding and Eligibility. Since the

inception of the program under ISTEA, states have been required to obligate 10% of

their STP funds for Transportation Enhancement (TE) activities. TEs are projects

intended to improve communities’ cultural, aesthetic, and environmental qualities.

To be eligible for TE funding, a project must “relate to surface transportation” and

fit into one or more of the following 12 eligible categories:37

Provision of facilities for pedestrians and bicycles,

Provision of safety and educational activities for pedestrians and

bicyclists,

Acquisition of scenic easements and scenic or historic sites,

Scenic or historic highway programs,

Landscaping and other scenic beautification,

Historic preservation,

Rehabilitation and operation of historic transportation buildings,

structures, or facilities,

Preservation of abandoned railway corridors (including the

conversion and use thereof for pedestrian or bicycle trails),

Control and removal of outdoor advertising,

Archaeological planning and research,

Of the projects receiving funding, most are authorized to receive those funds from the

Surface Transportation Program (STP) or the National Highway System (NHS) program.

The STP provides funding that may be used by states and localities for projects on any

federal-aid highway. The NHS program provides funding to states for improvements to

rural and urban roads that are part of the national highway system, including the Interstate

System and designated connections to major intermodal terminals.

23 U.S.C. §101(a)(35)

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Environmental mitigation to address water pollution due to highway

runoff or reduce vehicle-caused wildlife mortality while maintaining

habitat connectivity, and

Establishment of transportation museums.

SAFETEA changes the set-aside requirements for TEs and expands the

eligibility requirements. Under §1113(c), the 10% set-aside from STP funds is

changed to allow a state, from FY2006 onwards, to set-aside the greater of 10% of

funds apportioned the state under the STP, or the dollar amount previously set aside

for TE activities in FY2005.38 Under §1122(a), the definition of TE activities is

amended slightly to include historic battlefields (under the scenic easements

category) and inventory of billboards (as well as control and removal). Other

categories remain unchanged.

Environmental Restoration and Pollution Abatement. Under §6006(b),

SAFETEA authorizes funding and expands eligibility requirements for

“environmental restoration and pollution abatement” activities. Eligibility is

extended to projects involving retrofitting and construction of stormwater treatment

systems to meet federal and state requirements to address water pollution or

environmental degradation caused wholly or partially by a transportation facility. The

expenditure of funds is limited to 20% of the total cost of an ongoing reconstruction,

rehabilitation, resurfacing or restoration project. Current law allows a state to use

STP funds for such projects. As amended by SAFETEA, the use of NHS funds will

be allowed as well.

Control of Noxious Weeds. Under §6006(c), SAFETEA expands funding

eligibility under both the STP and NHS programs for activities to control noxious

weeds and noxious aquatic weeds and to establish native plant species. Activities

related to transportation projects that may be carried out are: the establishment of

plants selected by state and local transportation authorities to perform abatement of

stormwater runoff, stabilization of soil, or aesthetic enhancement; and management

of plants which impair or impede the establishment, maintenance, or safe use of a

transportation system. Specific activities include:

Rights of way surveys to determine management requirements to

control noxious weeds, brush, or trees considered to be a threat to

safety or maintenance of transportation systems;

Control or elimination of plants that impair or impede the

establishment, maintenance, or safe use of a transportation system;

Establishment of plants, whether native or non-native with a

preference for native when possible, for the purposes of abatement

of stormwater runoff, stabilization of soil, or aesthetic enhancement;

Elimination of plants to create fuel breaks for the prevention and

control of wildfires; and

Training.

In SAFETEA, an average of $6.4 billion is authorized to be appropriated to STP for each

fiscal year.

CRS-23

Research Grants. Under §5101, SAFETEA authorizes funding out of the

Highway Trust Fund (other than the Mass Transit Account) for a variety of research

programs. The Surface Transportation Research, Development, and Deployment

Program is authorized to be appropriated a total of $196,400,000 for each fiscal year

to carry out certain research activities. Included among them are projects listed under

§5513 of SAFETEA. Projects that may be considered “environmental” research

include:

$750,000 for each of FY2006 through FY2009, and available until

expended, to the University of Montana for use in carrying out the

Hydrogen-Powered Transportation Research Initiative. [§5513(h)]

$2,500,000 in each of FY2006 through FY2009 to the University of

Kansas Transportation Research Institute for research and

development of advanced vehicle technology concepts. The research

is to focus on vehicle emissions, fuel cells and catalytic processes,

and intelligent transportation systems. [§5513(j)]

$1,000,000 for FY2006, and available until expended, to the

University of Vermont for research, development and field testing

of hydrogen fuel cell and biofuel transportation technology.

[§5513(l)]

Surface Transportation Environment and Planning Cooperative

Research Program. Under TEA-21, DOT established the Surface TransportationEnvironment Cooperative Research Program (23 U.S.C. §507). Included among the

Program’s research priorities were requirements to: improve understanding of the

factors that contribute to the demand for transportation; develop indicators of

economic, social, and environmental performance of transportation systems to

facilitate analysis of potential alternatives; and study the relationship between

highway density and ecosystem integrity. One component of the program was the

establishment of an Advisory Board to make recommendations on environmental and

energy conservation research, technology, and technology transfer activities related

to surface transportation. Under the program, the Secretary was authorized to make

grants to, and enter into cooperative agreements with, the National Academy of

Sciences to conduct activities relating to transportation-environmental research. Over

TEA-21’s authorization period (FY1998-FY2003), Congress did not appropriate

funds for this program.

Under §5207 of SAFETEA, $16,875,000 of the Surface Transportation

Research funds are set aside for each of FY2006 through 2009 and existing

provisions under Title 23 of the program are amended. The program is modified to

include a provision for DOT to administer the program and sharpen the focus of the

research through stakeholder input via workshops, symposia, and an expert panel.

The existing research priority regarding the study of the relationship between

highway density and ecosystem integrity is removed.

Nonmotorized Transportation Pilot Program. Under §1807 of

SAFETEA, DOT is directed to construct a network of nonmotorized transportation

pilot programs in Columbia, Missouri; Marin County, California; Minneapolis-St.

Paul, Minnesota; and Sheboygan County, Wisconsin. The program is to include the

development a network of nonmotorized transportation infrastructure facilities,

CRS-24

including sidewalks, bicycle lanes, and pedestrian and bicycle trails that connect

directly with transit stations, schools, residences, businesses, recreation areas, and

other community activity centers. The purpose of the program is to demonstrate the

extent to which bicycling and walking can carry a significant part of the

transportation load. DOT is directed to develop statistical information on changes

in motor vehicle, nonmotorized transportation, and public transportation usage in

communities participating in the program and assess how the changes decrease

congestion and energy usage, and promote better health and a cleaner environment.

To implement the program, grants of $25,000,000, out of the highway trust fund

(other than the Mass Transit Account), are authorized for each of FY2006 through

2009. Grants of $6,250,000 per fiscal year may be made to state, local, and regional

agencies in each of the four communities.

Use of Recycled or Reused Materials. SAFETEA includes several

provisions that are intended to promote the recycling or reuse of certain materials.

Types of materials, and provisions related to each, include:

Debris from demolished buildings — Directs states that demolish a

bridge or overpass to make demolition debris available for beneficial

use (e.g. shore erosion control or stabilization, ecosystem

restoration, and marine habitat creation) by a federal, state, or local

government. [§1805]

Recycled coolant — Directs the President to conduct a review of

federal procurement policy of recycled coolant and take into

consideration recycled coolant produced from processes that are

energy efficient; generate no hazardous waste; produce no emissions

of air pollutants; present lower health and safety risks to employees

at a plant or facility; and recover at least 97% of the glycols from

used antifreeze feedstock. [§6014]

Recovered mineral component — Amends Subtitle F of the Solid

Waste Disposal Act (42 U.S.C. §6962) to direct EPA and each

agency head to implement procurement requirements and incentives

for use of cement and concrete incorporating recovered mineral

component, such as coal combustion fly ash or blast furnace slag.

Priority is to be given to achieving greater use of recovered mineral

components in cement or concrete projects for which recovered

mineral components historically have not been used or have been

used minimally. [§6017]

Granular mine tailings — Amends Subtitle F of the Solid Waste

Disposal Act to direct EPA, in consultation with the Secretary of

DOT and heads of other federal agencies, to establish criteria for the

safe and environmentally protective use of granular mine tailings

from the Tar Creek, Oklahoma Mining District, for cement or

concrete projects and transportation construction projects (including

those involving the use of asphalt). [§6018]

CRS-25

Noteworthy Provisions Not in the Final Bill

Of the environmental provisions in the final bill, two that generated significant

debate were not included. The first related to funding for stormwater mitigation

programs. The second related to secondary containment requirements applicable to

aviation refueling trucks.

Set-Aside for Stormwater Mitigation Program Funding. The Senatepassed version of H.R. 3 would have required the establishment of a Highway

Stormwater Discharge Mitigation Program. The provision in the Senate-passed

version of H.R. 3 (previously at §1620) would have required each state to set aside

2% of its STP apportionment for mitigation projects to improve the quality of

stormwater discharge from federal-aid highways. Funding could have been provided

for projects that reduce flooding; recharge groundwater; promote natural filters;

minimize stream bank erosion; and improve water quality. The provision was

ultimately removed during conference.

As it is currently written, the federal requirements for STP funding eligibility

include “Environmental mitigation to address water pollution due to highway

runoff.” However, it does not require a specific percentage of STP funds to be set

aside for such projects.

Secondary Containment Exemption for Aviation Refueling Vehicles.

One element of the Clean Water Act is a requirement that certain facilities that store

oil on-site, above certain thresholds, establish oil spill prevention and containment

procedures. The Spill Prevention, Control, and Countermeasure (SPCC) rule (40

CFR 112) requires facilities to plan for and have procedures in place to prevent an

oil spill that could reach navigable waters and, if a spill were to occur, to be able to

contain, clean up, and mitigate the effects of that spill.

On March 9, 2005, EPA responded to an aviation industry request for

clarification on how the SPCC planning requirements apply to aviation refueler

trucks. According to EPA, mobile refueler trucks are required to have secondary

containment sufficient to contain a spill of oil from the largest compartment of a

parked truck, in compliance with the SPCC rules.

Some representatives from the aviation industry argued that meeting this

requirement is impractical and sought relief from Congress. During the Senate

debate on H.R. 3 and during conference, it was widely speculated among interested

stakeholders that a provision would be added to the transportation reauthorization bill

to exempt aviation refueling vehicles from SPCC requirements. However, such a

provision was not added.

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